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Friday, February 26, 2016

Tuscaloosa Police Department Breastfeeding Mother Wins Jury Verdict


By: Thomas Eden



Stephanie Hicks was hired in 2009 by the Tuscaloosa Police Department (TPD) as a patrol officer on the West Alabama Narcotics Squad and worked temporarily as an undercover agent. Hicks learned that she was pregnant on January 6, 2012, and informed her Captain and asked what the policies were for pregnant employees. She was informed that no policies were in place for pregnant employees and the Chief stated that it was at the discretion of her supervisor, as reported in a Federal Judges Order last October. 


On August 8, 2012, before going off on leave, Hicks received her annual evaluation and her overall performance was evaluated as "exceeds expectations." Hicks then took 12 weeks of FMLA beginning mid-August 2012 for the birth of her child and on November 26, 2012 returned to duty.

Within an hour of beginning her first day back at work, Hicks was called into the Captain’s office to speak with him and a Sergeant, where she was told that she was being written up in the form of an "informal counseling" for allowing her vehicle to go 1200 miles over the limit for recommended oil changes without changing the oil and for continuing to obtain multiple warrants for individual defendants.

Hicks also discussed with the Captain and Sergeant in this same meeting that she was breastfeeding her new child. The Captain informed Hicks that the police station did not have a pumping area similar to the lactation rooms at City Hall. Hicks asked if she could use the records room to express breast milk, but the Captain indicated that Hicks should use the locker room.

After the meeting, Hicks overheard the Captain and Sergeant discussing wanting to "get rid of that little bitch" and that they would find "any way" they could to do so, along with other more colorful references to Hicks.

Reluctantly, Hicks expressed breast milk in the police locker room at work roughly twice a day, and every time Hicks expressed breast milk at work, someone entered the locker room.

Hicks was reassigned and demoted to a less desirable unit in December 2012, after only six days back on the job. She was also required to be on patrol and to wear a bullet-proof vest. On her doctor's orders, Hicks requested a desk assignment because wearing the vest would “impede milk production or cause infection.” Her request was denied, and she was given the choice of wearing a larger vest or working without one, the Judge wrote.

Hicks resigned in January 2013, and filed suit against the City under the Pregnancy Discrimination Act and FMLA Retaliation among other claims. A federal court jury, on February 19, 2016, found in favor of Hicks and awarded her $374,000 in damages, finding that the City violated the Pregnancy Discrimination Act by making working conditions intolerable and engaged in FMLA Retaliation, which compelled her to resign. There is now a room designated for women who need to use a breast pump at TPD headquarters and two at City Hall.

Common Sense Counsel: It's unlawful to take adverse employment actions against an employee because she insists on her right to take a break and lactate or for expressing breast milk at work. And with most adverse employment decisions, bad timing is the mother’s milk upon which this substantial jury verdicts rest.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901.

Wednesday, February 24, 2016

Birmingham Minimum Wage Ordinance Likely Unconstitutional


By Tommy Eden

Although the new ordinance adopted by the Council of the City of Birmingham on February 9, 2016 (see below), by its language, applies to private businesses the Alabama Supreme Court has held in the past that requiring private employers to grant paid military leave violates the Alabama Constitution. See White v. Associated Industries of Alabama, Inc. 373 So.2d 616 (Ala. 1979)(the requirement that employers pay their employees for 21 days a year Guard or Reserve service when they do not work alters working hours and pay provisions in violation of Alabama constitutional provisions forbidding impairment of contracts Art.1 section 6, the due process provision, and Art.1 section 22, the impairment of contracts provision of the Constitution of Alabama, 1901). It likely that the Birmingham City Council Ordinance will be found unconstitutional as an impairment of private contracts under Art.1 section 22 of the Constitution of Alabama, 1901. It is also likely the Alabama Legislature will intervene to withdraw the City’s authority in this area. The Council may have predicted the final outcome in the last sentence: "The City Council hereby declares that it would  have adopted this section, and each and every subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional."


ORDINANCE NO.  16-25 AN ORDINANCE RELATING TO
MINIMUM WAGE TO BE PAID TO EMPLOYEES BY EMPLOYERS IN
THE CITY OF BIRMINGHAM ALABAMA
WHEREAS, Poverty in the city of Birmingham is a problem that affects the general health and welfare of its citizens, it is incumbent upon the city to take legislative steps to help lift working families out of poverty, decrease income inequality, and boost our economy; and
WHEREAS, at least 15 cities across the United States have increased their local mini- mum wage and many other cities have pro- posed increases; and
WHEREAS, the State of Alabama provides cities with broad authority to regulate matters implicating the city's police power, to provide for the safety, preserve the health, promote prosperity, and improve the morals, order and comfort and convenience of the inhabitants so long as such regulations are not inconsistent with the laws of the state; WHEREAS, a minimum wage increase would reduce labor turnover, improve organization- al  efficiency,  increase  worker  purchasing power in our local economy, and reduce reliance on social services; and
WHEREAS, the Council adopted Ordinance No. 15-124 on August 18, 2015 changing the minimum wage and making the change effective July 01, 2016; now therefore
BE IT ORDAINED BY THE BIRMINGHAM CITY
COUNCIL that Ordinance No. 15-124 be amended to change the effective date as follows:
SECTION I: New Ordinance Establishing Minimum Wage for Employers to Pay Employees in the Birmingham
SECTION II: BIRMINGHAM MINIMUM WAGE RATES
A) Definitions.
For purposes of this section, the following definitions shall apply:
1) "Employ" means to suffer or permit to work.
2) "Employer"- means any individual, partnership, association, corporation, business trust, or any person or group of persons act- ing directly or indirectly in the interest of an employer in relation to an employee, and shall include the City of Birmingham and its departments, divisions, and agencies, but shall not include any other governmental entity which includes, for purposes of this Ordinance, any other unit of local government, the state government, and the government of the United States
3) "Employee'' means any individual em- ployed by an Employer and who performs at least twenty hours of work within a calendar year while physically present within the geo- graphic boundaries of the city of Birmingham for an Employer.
4) "Wage" means any fixed regular payment made on a regular basis, typically on an hourly, daily or weekly basis, made by an employer to an employee for work or services.
5) "Minimum wage" includes all Wages, Commissions, Piece-Rate, and Bonuses received by the employee and shall be governed by the rates set forth in Section ll(B)(ii) of this ordinance.
6) "Piece-Rate" means a price paid per unit of work.
7) "Tip" means a verifiable sum to be presented by a customer as a gift or gratuity in recognition of some service performed for the customer by the employee receiving the tip.
8) "Tipped Employee" means an Employee engaged in an occupation in which the Employee customarily and regularly receives more than $30 per month in Tips,
9) "Effective Date" shall have the meaning set forth in Section V of this ordinance.
Wage Rates
(i) Employers shall pay Employees no less than the applicable minimum wage rate provided  for  in  this  chapter  for  each  hour worked within the geographic boundaries of the city of Birmingham.
(ii) The minimum wage rate shall be an hour- ly rate as follows:
(a) Beginning on March 01, 2016, $8.50 per hour;
(b) Beginning on July 01, 2017, $10.10 per hour;
(c) On July 01, 2018, and on each July 1 of each successive year thereafter; or in the alternative on the first day of the fiscal year, should such date change from its existing date of July 1st; the minimum wage rate from the previous year shall be increased by the increase, if any, in the cost of living. The increase in the cost of living shall be measured by the percentage increase, if any, as of July of the previous year over the level as of July of the year preceding that of the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPl-W) for the South- east region, or its successor index as published by the U.S. Department of labor or its successor agency, with the amount of the minimum wage increase rounded to the nearest multiple of five cents. The Mayor shall designate an official within the City government to announce the adjusted rates by October 15, 2016, and each October 15 of each successive year thereafter, which shall be published in a bulletin announcing the adjusted rate for the upcoming year. If the federal minimum wage as prescribed by 29
U.S.C. sec 206(a)(l) is increased in excess of
the minimum wage then in effect under this section, the minimum wage then in effect under this section shall be increased to the same amount as the federal minimum wage, effective on the same date as the increase in the federal minimum wage and shall be in- creased in accordance with this section thereafter.
Employers may consider tips as part of the wages of tipped employees, but such a tip credit may not exceed 50% of the minimum wage rate established pursuant to this Ordinance. Employers shall pay tipped employees a direct cash wage of not less than 50 percent of the minimum wage rate established pursuant to this Ordinance, provided that the combination of the cash wage paid directly by the Employer and tips received by the Tipped Employee totals no less than the minimum wage rate, with the difference be- ing made up by the Employer. An employer who elects to use the tip credit must inform the affected employee in advance and must be able to show that the employee receives at least the minimum wage rate specified pursuant to this Ordinance when direct wages and tips are combined. The tips received by an Employee become the property of the Employee and may not be shared with the Employer, except that this provision does not preclude a valid tip pooling or sharing arrangement among employees who customarily and regularly receive tips.
SECTION Ill:  ENFORCEMENT AND REMEDIES
Any employer that fails to pay the minimum wage required under this chapter shall be required to pay the employee the unpaid wag- es together with an additional two times that amount as liquidated damages.
Any Employee who is paid less than the minimum wage established under this Ordinance may bring a civil cause of action against his/her Employer for the full amount of wages due from the Employer in any court of competent jurisdiction and, upon prevail- ing, shall be awarded any appropriate legal or equitable relief, including: unpaid wages and an additional two times that amount as liquidated damages; reinstatement; actual damages; civil penalties; and reasonable attorneys' fees and costs. An employee need not exhaust administrative remedies before bringing an action nor shall an investigation of an employer by the department or other law enforcement officer bar a person from bringing an action.
In addition to the civil remedies provided directly above, any Employer found to have violated any of the minimum wage provi- sions shall be subject to a civil penalty not to exceed $100 per day, per Employee who fails to receive the minimum wage as set forth in this chapter. If a civil penalty is imposed pursuant to this section, a citation shall be issued which describes the violation which has occurred and states the penalty for the violation. If, within fifteen (15) working days from the receipt of the citation,  the affect- ed party fails to pay the penalty imposed, the City of Birmingham shall initiate a civil action to collect the penalty. The civil action shall be taken in the court which has juris- diction over the location in which the viola- tion occurred.
Any Employer found to have violated any of the minimum wage provisions may be required to reimburse the City of Birmingham for any costs associated with its investigation of, and enforcement measures against, the Employer.
It shall be unlawful for an Employer or any other party to discriminate in any manner or take adverse action against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party's alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter and to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against a person within ninety (90) days of the person's exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights.
The Legal Department or other city agency as designated by the Mayor are authorized to promulgate rules and regulations regarding the interpretation, application and enforcement of the ordinance and are authorized to receive any complaint regarding a possible or suspected violation of this Ordinance and further authorized to take appropriate steps to enforce this Ordinance including, regard- less of whether there is a complaint, investigating any possible or suspected violation of this Ordinance.
In addition, where violations of this Chapter have been found by any judicial or administrative proceeding and where such violations have not been cured  through compliance with the order/decision of the governmental entity determining same, City agencies or departments may, after notice and an opportunity for a hearing, revoke or suspend any registration certificates, permits or li- censes held or requested by the Employer until such time as the violations of this Chapter are remedied.
SECTION IV: Severability
If any subsection, sentence, clause or phrase of this article is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would  have adopted this section, and each and every subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION V: EFFECTIVE DATE
This ordinance shall be effective when published as required by law.
Adopted by the Council of the City of Birmingham on February 9, 2016.


Friday, February 19, 2016

Norfolk Southern Alabama Train Conductor Wins ADA Jury Verdict


 By: Thomas Eden

Warren Whitted worked as a conductor for Norfolk Southern based in Irondale, Alabama, beginning with his hire in October of 2010. He was seriously injured in a non-work related incident in June of 2011 and took a leave of absence. A Norfolk Southern Work Status Report was signed by Whitted’s physician releasing him to return to work as a conductor, without restrictions or accommodations on October 3, 2011, as set forth in his amended federal court complaint.

Despite the full medical release, Norfolk stated that it would not allow him to return to work and would need additional medical information specifically regarding Warren’s “orthopedic condition.” Norfolk sent Whitted to a physical therapist that provided the requested information and agreed with the other doctors that Whitted was able to work. Norfolk then sent Whitted, in January 2012, to a field test where the physical therapist and Trainmaster observed him successfully perform the essential functions required of his job as a conductor.

In March of 2012, Norfolk’s medical department suggested Whitted have a Functional Capacity Evaluation at Lakeshore Rehabilitation Center. In April 2012, Lakeshore gave Whitted the results of this test, which stated that he had passed.

In July 2012, Whitted was sent to Norfolk’s national training facility to again have his ability to perform evaluated and he demonstrated that he could adequately perform the job duties. Even though he was cleared by his orthopedic doctor to work, and by the physical therapist who observed him perform a field test, and by the doctors who performed his Functional Capacity Evaluation, Norfolk continued to refuse to allow Whitted to work.

In July of 2012, the medical department of Norfolk sent Whitted a letter stating that he could not come back as a conductor because he had a Traumatic Brain Injury, and was thereby unable to safely perform the essential functions of the job. When Whitted attempted to apply for other open jobs with Norfolk ’s vocational rehabilitation department, he was consistently rejected for multiple jobs because of the same reasons that Norfolk used to keep Whitted from working his job as a conductor. In October of 2012, Whitted applied for a vacant position as a diesel mechanic, but was not even granted an interview.

On February 17, 2016, a final judgment order was entered in favor of Whitted in his Federal Court ADA lawsuit against Norfolk Southern in the amount of $396,521.95. The jury had originally awarded 10.6 million, which was reduced based upon the $300,000 judgment cap in Title VII. The jury made specific verdict findings that, “Warren Whitted was regarded by Norfolk Southern as disabled” and they “refused to reinstate” and they “took that action because it regarded Mr. Whitted as disabled” and that he did not “pose a direct threat to Norfolk Southern, himself, or other employees.”

Common Sense Counsel: With the advent of the ADAAA and the expansion of the definition of a disability, an employer’s best chance to defeat a disability discrimination claim may require the employer to show that the plaintiff was not a qualified individual. This case provides a model for how not to raise the “unqualified” defense in defending an ADA claim.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901.

Thursday, February 11, 2016

Slam Dunk Hiring

By: Thomas Eden

Every employer needs an effective and legally defensible approach to hiring that is more than just a gut feeling.  Your job is typically to hire the right person, and to not get the company sued while doing it. There are 7 steps to Slam Dunk Hiring that include: 

1) Identifying needed job skills—typically in a legally drafted ADA compliant job description;

2) Preparing interview questions based on that job description; 

3) Avoiding legal landmines when developing those questions and being most careful when you go off script into casual mode; 

4) Knowing how to actually conduct the interview from rapport building, open ended to probing questions, and how to allow for silence; 

5) Having an evaluation and selection system that weighs technical skills, performance skills and certifications, and also scores each interviewed candidate; 

6) Training on how to deal with difficult interviewing situations by looking for possible warning signs; and finally, 

7) Conducting your background checks, drug screens, and industrial physiological testing knowing that more than a gut feeling is needed to make a good hiring decision.

Common Sense Counsel. The Concept of behavior-based interviewing is simple: your interview questions should target the candidate’s past job behavior, because past behavior is a reliable predictor of future performance. The way a person handled a specific situation in the past gives valid information about how that person will approach similar situations in the future. If a person worked well with customers in the past, he or she will most likely be effective with customers in the future. While you are thinking about all of your preparation, don’t forget to avoid those questions that can turn into Litigation Landmines.

These are the top 5: 

1) Where are you from? Sounds like a great rapport building question but could be interpreted as a probe about race, ethnicity or national origin, all of which are protected categories under Title VII. 

2) What year did you graduate from high school? This question could run afoul of the Age Discrimination in Employment Act and seen as another way to ask how old they are. 

3) Are you planning to have a family? That question could suggest women with families are disfavored; it could implicate laws designed to protect the LGBT community from bias or show you favor singles. 

4) Do you have any disabilities you want to let us know about? Under the Americans with Disabilities Act, employers are barred from asking about a disability even if it is related to job performance, unless done most artfully. 

5) How do you spend your free time? This is obviously a question that is not job-related and it can elicit information about someone’s religion, political affiliations, social clubs, etc.  A better question than any of the above is:  “I would like to know more about you and how it relates to your ability to perform the job.” Then if the candidate brings up an out of bounds topic don’t take the bait.


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, February 5, 2016

Stagehands Independent Contractor Finds 11th Circuit

Crew One refers stagehands to event producers for concerts, plays, graduations, sporting events, trade shows, and religious events in the Atlanta area. Event producers ordinarily contract with Crew One for a certain number of stagehands and pay the company an hourly rate for each stagehand. Crew One then refers interested stagehands from its database.

At Crew One orientation, stagehands must sign an “Independent Contractor Agreement” before Crew One adds them to the database. The agreement informs the stagehand that he or she is “an independent contractor” who is “responsible for all . . . taxes,” “hired on an individual project basis,” and entitled to “negotiate for each individual project.”

On the day of the event, stagehands report thirty minutes before the client’s call time so that a Crew One project coordinator can confirm attendance for payment purposes and assign them to a particular department, such as rigging or carpentry. The stagehands bring their own basic supplies, and Crew One provides no supplies other than the vests. After work begins, stagehands report exclusively to tour personnel, except that stagehands must sign out with Crew One to record their time of departure.

In March 2014, the International Alliance of Theatrical Stage Employees petitioned the National Labor Relations Board (NLRB) to represent stagehands who contract with Crew One. The NLRB determined that the workers were employees of Crew One, which gave the board authority to regulate their relationship and directed an election and subsequently, certified a union.

Crew One refused to negotiate with the union which caused the NLRB to find it guilty of an unfair labor practice, which prompted Crew One to ask the Eleventh Circuit Court of Appeal to review the case.

On Wednesday, the 11th Circuit Court of Appeals vacated the NLRB’s decision that Crew One Productions Inc. had violated the National Labor Relations Act. In writing for the majority, Judge William Pryor found that Crew One lacked control over the stagehands, and that all control over their work was exercised by Crew One’s clients.  Judge Pryor then noted that Crew One provided some basic tips about “dealing with touring personnel.” It warns stagehands that touring crews “sometimes are not in the best of moods” and encourages stagehands to wait for and follow instructions, “ask questions when necessary,” and remember that tour personnel “are your boss for the day.”

Common Sense Counsel: Next time you are trying to decide how to properly classify someone, as an employee or an independent contractor, understand that the right to control the means and manner of performance is a key factor-with about 20 other factors. You can complete the 5 part AL DOL checklist at www.alabamaatwork.com.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901.